OK Chapter 85 of the Family Code allows for agreed protective orders but also requires (it says "shall") that a finding of family violence occurred. I have a def. atty saying he'll agree w/out the finding. is that permissible? thanks.

My reading of section 85.001 is that it only applies following a contested hearing in a case ("at the close of a hearing...the court shall").

Section 85.005 does not make any reference to required findings, it merely provides that you can enter an agreed order that is enforceable the same as one rendered by the court following a contested hearing.

One of our district judges used to contend whether an agreed protective order without a finding of family violence was enforceable, and my understanding was that 85.005 was enacted to answer such a contention.

I think that agreeing to the protective order in general and agreeing to an order without a finding of family violence are two entirely different things.

85.005 says you can have an agreement, but it specifically references 85.022, which are all the things you can do IF THERE IS A FINDING OF FAMILY VIOLENCE (which is required in the words of each section of 85.022.

Without a finding of family violence, it is an agreement under 85.021, which is not a family violence protective order, but merely a custody of kids and property statute and is not criminally enforceable. This one is not enforceable criminally, so if you are agreeing to these, you are taking a lot of the bite out of what protective orders can do.

I work in PO's. We do criminally enforceable agreed protective orders with no affirmative finding of family violence. We have found this to be a helpful bargaining tool in getting the respondents to agree to the PO. . . particularly when custody/visitation issues are pending (it's something we just handwrite into our Agreed Orders if the issue comes up).

In 85.022, it does say "In a protective order, the court may prohibit the person found to have committed family violence from . . ." But since in an agreed order the court hasn't heard the evidence in order to make a family violence finding, the "court finding" in 85.002 is confusing, especially with the specific reference to 85.002 to guide the terms of an agreed order. Suzanne, I think I see what you are saying, but if we interpret 85.022 as requiring an affirmative family violence finding, then don't we also have to interpret as it as the Court's finding? Which, if so, then wouldn't that negate the ability to agree to PO's all together?

When I get back to work on Monday, I'll do some case law research. Let me know if we are way off base, but so far we have successfully prosecuted violations of PO's even without the affirmative finding of FV.

I think you make a good point, and if no defendants are saying their criminal cases don't apply, then "it ain't broke." I see the logic in that interpretation and I have had many a defense attorney disagree with my interpretation...but if I were the prosecutor that got the PO violation case, and I was supposed to prosecute a case because a non-violent ex-husband went within 200 yards of his now ex-wife....I would say, "What's the point?" And why would the law hold certain spouses to that strict of a standard, without any previous finding of family violence.

I do think, though, that if the respondent tells the judge that he has committed family violence, either in writing or at the bench, then the judge can make that finding. The other findings that are required, county of residence, etc., have been agreed to, so I don't see why that one is any different. And in the juvenile world, which is civil court also, the kids sign stipulations which the judge uses to make a finding of delinquent conduct. I realize, though, that the admission of family violence is the whole hurdle, and that's why the use of avoiding the finding is helpful to you.

Can the defendant agree that on a future date, he or she can be prosecuted with fewer elements than are required by statute? Because that's basically what these guys are saying...if they don't have to admit to the family violence now, they will allow themselves to be prosecuted later for a crime that is premised upon a finding of family violence--and the penal code directly references the statute with the finding. I wouldn't want to take that case to a jury...when most people have seen the effects of nasty divorces...if the order you are using to punish someone criminally does not say "family violence" then why would the jury be too worried about it? If the evidence isn't there when you have your hearing right after the incident, it isn't going to get any better two years later, with all the comings and goings that will have happened between the two parties in that amount of time.

I think this is similar to a drunk driver saying that she wants to avoid the consequences of a finding of intoxication, and so agrees to a Class C open container violation but tells you that if later she is arrested for DWI, she will agree to be punished as a DWI 2. They can't agree that in the future certain elements of an offense will not be required.

In response to Mr. Tirey, couldn't a hearing be just the judge calling the case, both sides announcing ready, and the defendant stating that both sides agree? I don't think there is a "contested hearing" requirement. If the respondent doesn't show, you can get a default judgment, so I don't see why if he does actually show and will agree the law would not allow for that.

woohoo...I love a good legal debate. This is way more fun than doing laundry on Sunday.

[This message was edited by suzannejost on 10-04-09 at .]